UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT A. MCNEIL,
Plaintiff
v.
Civil Action No. 15-1288 (CKK)
COMMISSIONER, INTERNAL REVENUE,
et al.,
Defendants
MEMORANDUM OPINION
(April 12, 2016)
Through this action, Plaintiff seeks to enjoin the Internal Revenue Service (“IRS”), the
Attorney General, officials of the IRS and the Department of Justice, and other related persons
from taking certain enumerated actions regarding the collection of taxes. All of these actions
pertain to activities undertaken by the IRS or the Department of Justice in circumstances in
which a person does not file a tax return. Before the Court is the United States’ [4] Motion to
Dismiss, filed on behalf of all of the defendants. Upon consideration of the pleadings, 1 the
relevant legal authorities, and the record for purposes of this motion, the Court GRANTS
Defendants’ [4] Motion to Dismiss. As explained further below, the Court concludes that it has
no jurisdiction over this action in light of the Anti-Injunction Act. Therefore, the Court concludes
that there is no need to reach Defendants’ other arguments in favor of dismissal. Furthermore, the
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The Court’s consideration has focused on the following documents:
• Pl.’s Original Complaint (“Compl.”), ECF No. 1;
• United States’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 4;
• Pl.’s Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 6 and
• United States’ Reply in Supp. of Mot. to Dismiss (“Defs.’ Reply”), ECF No. 7.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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Court concludes that there is no basis for Plaintiff’s [8] Motion to Resolve Fact Disputes. That
motion is denied, as well, and this case is dismissed in its entirety.
I. BACKGROUND
The Court limits its presentation of the background to the key facts that are necessary for
the Court’s resolution of the fundamental issue presented in the pending motion: whether the
Court is deprived of jurisdiction over this action in light of the jurisdiction-stripping provision of
the Anti-Injunction Act.
A. Statutory and Regulatory Scheme
Pursuant to Internal Revenue Code section 6020, “[i]f any person fails to make any return
required by any internal revenue law or regulation made thereunder at the time prescribed
therefor, or makes, willfully or otherwise, a false or fraudulent return, the Secretary [of the
Treasury] shall make such return from his own knowledge and from such information as he can
obtain through testimony or otherwise.” 26 U.S.C. § 6020(b)(1). Furthermore, “[a]ny return so
made and subscribed by the Secretary shall be prima facie good and sufficient for all legal
purposes.” Id. § 6020(b)(2). In other words, if a person fails to file a tax return, the Government
is required to produce a substitute return on behalf of the taxpayer, and that return may be used
for other tax-related purposes. See Byers v. C.I.R., 740 F.3d 668, 671 (D.C. Cir.), cert. denied,
135 S. Ct. 232, reh’g denied, 135 S. Ct. 887 (2014). Among other such purposes, substitute
returns may be used for the assessment of deficiencies against the taxpayers. See id. (“If a
taxpayer fails to file a return, the IRS may create a substitute tax form under 26 U.S.C. § 6020(b)
and file a notice of deficiency for the total amount it calculates as due.”).
The regulations promulgated by the Department of the Treasury further elaborate this
scheme. Specifically, “[i]f no return is made, or if the return … does not show any tax, for the
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purpose of the definition ‘the amount shown as the tax by the taxpayer upon his return’ shall be
considered as zero.” 26 C.F.R. § 301.6211-1(a). As a result, “if no deficiencies with respect to the
tax have been assessed, or collected without assessment, and no rebates with respect to the tax
have been made, the deficiency is the amount of the income tax imposed by subtitle A, the estate
tax imposed by chapter 11, the gift tax imposed by chapter 12, or any excise tax imposed by
chapter 41, 42, 43, or 44.” Id. In short, if no return has been filed, no deficiencies have already
been assessed or collected, and no tax has been paid via a rebate, the amount of the deficiency—
i.e., the amount owed by the taxpayer—is the amount of taxes due that is calculated by the IRS.
The IRS performs this calculation by creating a substitute return under section 6020(b).
The applicable regulations further lay out the process for producing these substitute
returns. The regulations provide that the IRS and its agents “may make the return by gathering
information and making computations through electronic, automated or other means to make a
determination of the taxpayer’s tax liability.” 26 C.F.R. § 301.6020-1(b)(1). The regulations then
set out the parameters of the process for creating such a return:
(2) Form of the return. A document (or set of documents) signed by the
Commissioner or other authorized Internal Revenue Officer or employee shall be
a return for a person described in paragraph (b)(1) of this section if the document
(or set of documents) identifies the taxpayer by name and taxpayer identification
number, contains sufficient information from which to compute the taxpayer's tax
liability, and purports to be a return. A Form 13496, “IRC Section 6020(b)
Certification,” or any other form that an authorized Internal Revenue Officer or
employee signs and uses to identify a set of documents containing the information
set forth in this paragraph as a section 6020(b) return, and the documents
identified, constitute a return under section 6020(b). A return may be signed by
the name or title of an Internal Revenue Officer or employee being handwritten,
stamped, typed, printed or otherwise mechanically affixed to the return, so long as
that name or title was placed on the document to signify that the Internal Revenue
Officer or employee adopted the document as a return for the taxpayer. The
document and signature may be in written or electronic form.
26 C.F.R. § 301.6020-1. Finally, as stated above, returns prepared in this manner by the IRS are
“good and sufficient for all legal purposes.” 26 C.F.R. § 301.6020-1(b)(3).
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B. Plaintiff’s Claims and Relief Sought
In his Complaint, Plaintiff essentially claims that the IRS falsifies records in the process
of creating substitute returns and that the Government then uses the allegedly falsified records in
taking legal action against Plaintiff and others. Plaintiff claims that the Government’s actions
violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and the Fifth Amendment to
the United States Constitution. The Court reserves any further presentation of facts underlying
these claims, to the extent that they are material to the Court’s resolution of issues raised by the
pending motion, for the discussion below. However, the Court presents in full the relief requested
by Plaintiff through the Complaint, as it pertains directly to the legal question before the Court.
Plaintiff requests that the Court:
74. Enjoin IRS from presuming, in any case involving 1040 income taxes, that a zero
amount due was shown on an imaginary return pursuant to any regulation, including
§301.6211, or making any other improper assumptions/presumptions concerning
Plaintiff as justification for falsifying IRS internal records;
75. Enjoin the Commissioner, his representatives, agents, employees, attorneys, those
persons in active concert or participation with him, from directly or indirectly:
a. Falsifying/manipulating, in the future, any computer system of records such
as the IMF, NMF, AIMS, BMF, CADE2, (for examples), which might be or
become associated with Plaintiff, by using any procedure associated with
requests to IRS to perform a substitute for return at the request of a victim,
when no such election was made, which precise act the Commissioner’s
employees committed, resulting in damage to Plaintiff;
b. Falsifying/manipulating, in the future, any computer system of records to
show IRS supposedly filed a substitute for return on a certain date, when no
such substitute for return was actually prepared on that date, which precise act
IRS committed, resulting in damage to Plaintiff;
c. Making or inferring in any single or series of “certifications” that might
reasonably be, or become, associated with Plaintiff, the false claims that a
Substitute For Return was supposedly prepared on a date when it was not,
which act the Commissioner may perform to damage Plaintiff, as he has
concerning others;
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d. Creating “self-authenticating” certifications concerning records he maintains
regarding Plaintiff to prevent IRS employees or expert witnesses from being
cross-examined during tax court or district court cases regarding any system
of IRS records, any individual income tax return, or any issue related thereto,
which precise act the Commissioner commits routinely;
e. Knowingly using any falsified system of records which might be, or might
reasonably become, associated with Plaintiff, for any purpose whatsoever,
which precise act the Commissioner committed, resulting in damage to
Plaintiff;
f. Creating or using a “dummy”, blank pretended return to form the basis for
later pretension of making “changes” thereto, to circumvent the Defendants’
lack of authority to perform substitute 1040 income tax returns;
76. Enjoin the Attorney General of the United States, her representatives, agents,
employees, attorneys, those persons in active concert or participation with her, from
directly or indirectly:
a. Using any fraudulent “self-authenticating” IRS document to prevent the cross-
examination of IRS witnesses concerning 1.) authority of IRS to take any
action, 2.) authority of any individual IRS employee to take any action, or 3.)
accuracy of internal records maintained by IRS concerning individuals and the
individual income tax;
b. Instructing United States Attorneys to conceal exculpatory evidence in IRS
files concerning so-called non-filers, by using “self-authenticating”, but
falsified, documents, provided by IRS;
c. Falsely stating or inferring in any document submitted, or to be submitted, to a
United States Court, in cases involving “income tax non-filers”, the false
claim that the authority Congress delegated to the Secretary at §6020(b)
extends beyond its limitation to employment, excise and partnership taxes;
d. Submitting in any case before a United States Court, whether judicial or
administrative, hearsay concerning IRS internal procedures which was
procured by fraud of the IRS on United States tax court judges, which hearsay
contradicts IRS actual internal practices;
77. Enjoin any artifice, scheme, device, sham, presumption or procedure by IRS or DoJ
as part of any conspiracy to bypass the rights of individuals in connection with
income taxes, in violation of 28 USC §241;
78. Grant Plaintiff such other relief, including court costs and cost of researching the
scheme, as is just and equitable.
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Pl.’s Compl. ¶¶ 74-78.
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases
entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). The Court begins with the presumption that it does not have
subject matter jurisdiction over a case. Id. To survive a motion to dismiss pursuant to Rule
12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction
over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In
determining whether there is jurisdiction, the Court may “consider the complaint supplemented
by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). “At the motion to dismiss stage, counseled
complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford
all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole
Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). “Although a court must accept as true all factual
allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v.
Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted).
III. DISCUSSION
Defendants argue that this Court has no jurisdiction over any of the putative claims in this
case because of the jurisdiction-stripping provision of the Anti-Injunction Act. As explained
below, the Court agrees with Defendants that this Court is deprived of jurisdiction over this
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action in its entirety by that statute. Therefore, the Court does not reach the Government’s
alternative argument that Plaintiff has no standing to bring this action. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (law does not require particular sequencing of
jurisdictional issues). Moreover, in light of this conclusion, the Court may not address the
Government’s remaining argument that, even if the Court had jurisdiction over this case, the
Complaint would fail to state a claim. See Anderson v. Carter, 802 F.3d 4, 9-10 (D.C. Cir. 2015)
(“[O]nce we have established that we have no subject-matter jurisdiction, we can proceed no
further.”).
Under the Anti-Injunction Act, except as explicitly provided by the statute, “no suit for
the purpose of restraining the assessment or collection of any tax shall be maintained in any court
by any person.” 2 26 U.S.C. § 7421(a). “The manifest purpose of § 7421(a) is to permit the
United States to assess and collect taxes alleged to be due without judicial intervention, and to
require that the legal right to the disputed sums be determined in a suit for refund.” Enochs v.
Williams Packing & Nav. Co., 370 U.S. 1, 7 (1962). “As the Supreme Court explained, the
provision reflected ‘appropriate concern about the ... danger that a multitude of spurious suits, or
even suits with possible merit, would so interrupt the free flow of revenues as to jeopardize the
Nation’s fiscal stability.’ ” Cohen v. United States, 650 F.3d 717, 724 (D.C. Cir. 2011) (quoting
Alexander v. “Americans United” Inc., 416 U.S. 752, 769 (1974) (Blackmun, J., dissenting)).
While the Anti-Injunction Act does not bar all legal claims pertaining to taxation, it does
bar “those suits seeking to restrain the assessment or collection of taxes.” Id. (quoting Bob Jones
Univ. v. Simon, 416 U.S. 725, 737 (1974)). Framing a claim that aims to restrain the assessment
2
Plaintiff does not claim that this action falls under one of the statutorily enumerated exceptions
to the jurisdiction-stripping provision.
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or collection of taxes in constitutional terms does not open the courthouse door to such claims.
See We the People Found., Inc. v. United States, 485 F.3d 140, 143 (D.C. Cir. 2007) (no
jurisdiction over claim that seeks to “restrain the Government’s collection of taxes, which is
precisely what the Anti–Injunction Act prohibits, notwithstanding that plaintiffs have couched
their tax collection claim in constitutional terms.”).
This Anti-Injunction Act directly strips this Court of jurisdiction over this case. As the
Court’s recitation of the relief sought by Plaintiff above indicates, Plaintiff seeks to restrain
various activities taken by the IRS, the Department of Justice, and associated government
officials to facilitate the assessment and collection of taxes from individuals who have not filed
tax returns. Plaintiff claims that he is not seeking to restrain the use of substitute returns,
wholesale. Instead, he argues that he only seeks to restrain the particular actions taken by the
Government to implement this scheme, which Plaintiff characterizes as fraudulent. See Pl.’s
Opp’n at 8 (“Said differently, if Plaintiff WERE seeking to prevent IRS from performing
substitute 1040 income tax returns, or using valid certifications, the AJA WOULD apply to bar
the case. But since he only seeks to enjoin the precise falsifications identified above concerning
IRS’ IMF records and public facing certifications, the AJA has no arguable application
whatsoever to this case.”). But any such differences are of no consequence. All the actions of
which Plaintiff complains and that are the bases for Plaintiff’s request for relief are actions taken
in the process of assessing and collecting taxes: from the presumption that the amount of taxes
paid by a non-filer is zero, Compl. ¶ 74, to falsifying and/or modifying the IRS computer record
system used to generate substitute returns, id. ¶ 75, to using those allegedly falsified returns and
certifications in proceedings related to the assessment and collection of taxes, id. ¶ 76. In light of
the relief requested, it is clear that this suit is barred by the Anti-Injunction Act in its entirety.
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Nor does Plaintiff’s claim that he only seeks to restrain unlawful activities constitute any
answer to Defendants’ jurisdictional argument. The Anti-Injunction Act strips this Court of
jurisdiction to consider claims that seek to restrain the “assessment or collection” of taxes even if
allegedly illegal acts serve as the bases for such a claim. Indeed, this very effect is the essence of
a jurisdictional provision such as the one found in the Anti-Injunction Act. It strips a court of
subject matter jurisdiction regardless of the supposed merits of a plaintiff’s statutory or
constitutional claim.
Indeed, in what appear to be a similar challenge to the creation and use of substitute
returns, another district court judge also concluded that the Anti-Injunction Act withdrew the
district court’s subject matter jurisdiction. See Ellis v. Comm’r of Internal Revenue Serv., 67 F.
Supp. 3d 325, 333 (D.D.C. 2014), aff’d sub nom. Ellis v. C.I.R., 622 F. App’x 2 (D.C. Cir. 2015)
(Mem.). Furthermore, the judgment of the district court was affirmed by the United States Court
of Appeals for the District of Columbia Circuit in an unpublished opinion. The Court of Appeals’
decision rested wholly on its conclusion that “Appellant has not shown that the district court
erred in concluding that his claims are barred by the Anti-Injunction Act, the purpose of which is
to allow the government to assess and collect taxes without judicial interference.” Ellis, 622 F.
App’x at 3 (citations omitted). Insofar as Plaintiff argues that Ellis included different claims than
those in this case, the Court notes that it appears, based on the district court’s decision Ellis, that
the facts and the claims in the two cases have a high degree of similarity. See Ellis, 67 F. Supp.
3d at 328-29, 332-33. In any event, any differences between the two cases are ultimately
immaterial because the Court concludes the Anti-Injunction Act strips this Court of jurisdiction
over all of the claims in this case.
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Therefore, the Court dismisses this case for lack of subject matter jurisdiction, and the
Court does not reach Defendants’ alternative arguments as to why dismissal of this case is
required. Because the putative factual disputes raised by Plaintiff [8] Motion to Resolve Fact
Disputes are of no consequence to the resolution of the jurisdictional issues before the Court, the
Court denies that motion. Concomitantly, the Court denies as moot Defendants’ [9][10] Motion
to Strike Improper Surreply, through which Defendants seek to strike the Plaintiff’s submission
filed under the caption “Motion to Resolve Fact Disputes.”
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ [4] Motion to Dismiss;
DENIES Plaintiff’s [8] Motion to Resolve Fact Disputes; and DENIES AS MOOT Defendants’
[9][10] Motion to Strike Improper Surreply. This case is dismissed in its entirety.
An appropriate Order accompanies this Memorandum Opinion.
Dated: April 12, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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